Legal-Religious Status of the Female According to Age
Legal status in Judaism is determined by age, sex, legal capacity and, to some extent, by class (kohen, levi, yisrael) and societal status. This entry will deal chiefly with the changing legal status from conception through adulthood of females, with some reference to parallel status of males and the legal differences class imposes.
Mishnah Niddah 3:7 gives no status to the embryo prior to forty days from conception: it is considered “mere water.” At three months after conception, the pregnancy is considered recognizable (Niddah 2:4). This does not explicitly change the legal status of the fetus but rather that of the mother in terms of legal presumptions concerning her purity status. Some poskim do make a distinction in reference to abortion between the first forty days and three months. At seven months after conception, the fetus is considered to be viable, although from the point of view of realia, this was unlikely in antiquity. A widespread view in antiquity, accepted by talmudic sages, was that an eighth month fetus was not viable, while seventh month and ninth-month fetuses were viable (Rambam, Milah 1:13).
There is no difference between the status of a female and male fetus in reference to abortion or birth. The fetus is considered “a limb of its mother” without independent legal status at least prior to the start of the birthing process. At that point some poskim give it some level of status but it does not attain full personhood until the birth of the head or the majority of the body (in a breech birth) of a full-term pregnancy. Until that stage occurs, the child may be sacrificed if the mother’s life is at stake; according to some poskim, if both the mother and child will die unless birth occurs immediately, there is a preference for the life of the mother. Some poskim have allowed testing of fertilized eggs in the process of in vitro fertilization and have allowed sex selection to prevent certain medical or halakhic problems, e.g. selecting the zygotes which will not develop hemophilia or selecting only females to prevent the contested genealogical status of a male child born to a priest’s wife through donor insemination.
Prior to the birth of the head or the majority of the body in breech position, the status of the fetus does not equal the status of the mother. It has not attained the status of nefesh (Rashi). Some poskim consider there to be a change in the legal status once the fetus is “uprooted” at the beginning of labor but still make a distinction between full nefesh and the status of the “uprooted” fetus. Consequently the life and, according to many poskim, the health of the mother take priority and the fetus can be dismembered in a difficult birth (see Abortion).
Premature babies do not have full human status until they have survived thirty days. For this reason, they are treated as muktze (“excluded.” Objects forbidden to handle on the Sabbath and festivals) which has some impact on nursing, carrying, etc. (Rambam, Shabbat 25:6). If they were to be killed prior to having reached the thirty day status, it would not be considered a capital crime, but it is, of course, forbidden to do so. It was assumed that babies who were bastards but not recognized as such would not survive for thirty days but it was forbidden to actively take their lives (JT Yevamot 8:3, 9cd) despite the lifelong limitations bastardy places on a person. A number of poskim have permitted the abortion of a mamzer either by claiming that his life is forfeit because the mother would have been liable for capital punishment upon being found guilty even while still pregnant or because of the great pain such a child would cause a repentant mother. Although Niddah 5:3 is phrased in the masculine, one who commits infanticide of a child of either sex is considered a murderer. There is, however, a tendency to presume prematurity in reference to neonatal death to exempt the parents from the laws of mourning.
The laws of the firstborn do not apply to a cesarean birth for a boy in terms of redemption by a priest or to the birth of a female child for either double portion if there were only daughters or for redemption by a priest. Burial of an abortus after forty days of gestation was required for issues of ritual purity. Burial of aborti, stillborns and premature neonates is generally on the margins of the cemeteries. Mourning laws, including recitation of kaddish for eleven months, do not go into effect for them. This reflects both the desire to save the family from the rigors of mourning unless the child is certainly full-term, and the frequency with which such births/deaths occur. There have been several modern attempts, mostly on the part of women, to create some ritual that acknowledges the loss of the pregnancy and neonate in the absence of formal mourning laws.
Newborns are subject to ritual impurity from the day of their birth including death impurity, leprosy and genital discharges (Niddah 5:3). A girl with a uterine discharge of blood can be considered niddah from the day of her birth and a zavah from day ten (seven days for niddah plus three consecutive days to establish abnormal bleeding). This is connected to the hormonal stimulation of the developing fetus by the mother’s hormones which ceases at birth and may cause some uterine bleeding in the neonate (see Purity).
A newborn of either sex exempts the mother whose husband has died without other offspring from yibbum, levirate marriage. A newborn boy whose only brother has died without offspring subjects his sister-in-law to levirate marriage or release from it through halizah even though the woman must wait until he is thirteen years and a day to perform either levirate marriage or halizah. Such a woman is supported from her husband’s estate only for the first three months after his demise as she is considered to be “punished by Heaven” (Rambam, Ishut 18:17; Shulhan Arukh E.H. 160:1). A woman from a non-priestly family who gives birth after the death of her priest (Kohen) husband is allowed to eat terumah (heave offering) on account of the newborn whether male or female but not during the pregnancy. Conversely, the daughter of a Kohen pregnant with a child from a non-priest may not eat terumah from the fortieth day after conception and certainly not after the birth of the child, who has no rights to partake of terumah.
A newborn boy is a legitimate heir and he inherits even from his deceased mother through the “male offspring,” benin dikhrin, clause of the ketubbah on the first day of his life and if he subsequently dies, his property is passed on to his legitimate heirs (his father, grandfather, paternal uncles and brothers). A newborn girl may also inherit and receive gifts from various relatives and others but she may not inherit from her father if she has paternal brothers, though she may receive gifts from him. His obligation to provide dowry/bridal wealth to her to a certain percentage of his property was considered the exchange for her loss of inheritance rights. Upon her demise, her property is passed to her heirs in the same progression as for a boy.
Infants are to be nursed by their mothers (or by wet nurses if the mother has brought sufficient wealth into the marriage and chooses not to nurse according to Mishnah Ketubbot 5:5) for two years but may be nursed up to four or five years (Tosefta Niddah 2:3–5). They are entitled to maternal or substitute care necessary for their well-being. Husbands are obligated to provide extra food for their pregnant and nursing wives (Rambam, Ishut 21:11). Women are not obligated to nurse twins and the father must provide a wet nurse for one of the children (ibid. 21:12). In the event that the mother does not have sufficient milk and a wet nurse cannot be found, the father is obligated to provide substitute nutrition for the infant. Fathers are not legally obligated to maintain their children except during very early childhood (ketannei ketannim), until the age of five or six years (BT Ketubbot 65b). After the age of early childhood, there was a preference to support female children over their brothers lest they turn to prostitution (Beit Yosef E.H. 112:3).
The significance of legal status necessitated the clarification of the status during periods of transition or in anomalous cases (such as mental disability or physical abnormalities). Samuel ben Hophni Gaon (RaShBaH [d. 1013]) composed a treatise on transition from legal minority to legal majority entitled Sefer ha-Bagrut. A number of other rabbinic sages also composed such treatises, sometimes containing opinions in direct opposition to the positions held by Samuel ben Hophni, for example Sefer ha-Shanim by Rav Yehuda Ha-Kohen ben Yosef Rosh ha-Seder in Egypt in the second half of the twelfth century. RaShBaH set three conditions for legal majority: mental development which would enable the child to understand the rational mitzvot (this stage could occur prior or subsequent to the other stages and would obligate the person in those mitzvot), legal age (which when accompanied by sufficient mental development obligates the performance of the revealed mitzvot), and the appearance of two pubic hairs (Sefer ha-Bagrut, Introduction lines 6–18). In the third stage, legal adulthood is attained with all the privileges and obligations with the exception of service in the Temple (which began only at the age of twenty) and sale of real estate and slaves inherited from one’s father, which was delayed until the age of twenty according to most poskim, though Sefer ha-Bagrut is more lenient.
In addition to the length, spacing and position of the pubic hairs (Niddah 6:12, BT Niddah 52b), rabbinic sources discuss the significance of breast development, particularly in the absence of pubic hair. Advanced breast development is considered indicative of the existence of pubic hair (Niddah 6:1) and its absence in that case is attributed to its falling out (BT Niddah 48a), making the girl a legal adult. A parable mentioned in Mishnah Niddah 5:7 compares the stages of development of a woman to the development of a fig: an unripe fig parallels the minor girl (tinoket = ketanah), while the ripening fig parallels the maiden (na’arah), both of whom are under their father’s dominion; the ripe fig which parallels the adult (bogeret) who is outside her father’s authority and will never return to his legal dominion. Mishnah Niddah 5:8 describes the size of the breasts in order to be considered a definitive upper sign—all of which represents significant breast development. Nipple development is also considered one of the signs in this mishnah. Sefer ha-Bagrut (4: lines 59–60) refers to other definitive puberty signs— menstruation and giving birth. Many legal discussions concerning the appearance of the signs of puberty are based in medical realia, including the relationship between weight, labor, personal and familial tendencies and puberty. At legal majority a girl is obligated in all of the revealed mitzvot and can accept kiddushin on her own behalf, receive her own get and may undergo halizah (release from levirate marriage).
Another method to determine legal status, discussed in BT Gittin 65a, 59a (Sefer ha-Bagrut 6: lines 17–29), has to do with the ability to make distinctions. If the young child is given a stone and throws it away and a nut and keeps it, he is considered legally capable of acquiring things for himself. The girl who can make that distinction is capable of being married off by a guardian, which would make her eligible for me’un (marriage refusal declaration). This is considered to be from the age of six or above (Rambam, Ishut 4:7). Prior to that time, kiddushin arranged by a guardian is not considered to have taken place and she need not even perform me’un to be released from the marriage. Above the age of ten she is considered to have reached an age of discernment and to repudiate a marriage by a guardian requires me’un. Between the ages of six and ten, her ability to understand the concept of marriage determines whether me’un would be necessary. Similarly, if a minor between the ages of six and ten who has no guardian understands buying and selling values, his/her sales and purchases of movable objects and the gifts (large and small, on the deathbed or otherwise) are valid (BT Gittin 59a; Rambam, Mekhira 29:8–10; Sefer ha-Bagrut 5: lines 70–87). A girl of this age who understands that divorce means separation from her husband, is capable of receiving the get from him from a marriage arranged by her father (Rambam, Gerushin 2:18).
Three stages of development define the rabbinic legal status of girls: minor (ketannah or tinoket), maiden (na’arah) and adult (bogeret), according to Niddah 5:7. Maidenhood (na’arut) lasts for only six months before full legal majority is attained (BT Niddah 65a; Sefer ha-Bagrut 3: lines 8–11; Rambam, Ishut 2:12). Both time and physiological development influence the definition of the stages. A girl remains a minor until she reaches the age of twelve years and two pubic hairs have sprouted. This age was probably chosen because the majority of girls have begun to develop pubic hair by that age and it has remained relatively stable for puberty in the Mediterranean area. Throughout her minority and maidenhood she is under the absolute authority of her father. He has legal right to anything which she finds, her handiwork and money given for her marriage by the groom or his family (Mishnah Ketubbot 4:4; Rambam Ishut 3:11. As a minor he may sell her as a maidservant, usually with the understanding that she would become the wife of the master or of his son. In the event that she did not marry one of them, she was released at the appearance of two pubic hairs (Mishnah Kiddushin 1:2). The father has biblical authority to marry her to the Jewish man of his choice from the day of her birth (Niddah 5:4). The marriage is binding and may only be broken by the death of her spouse or by the acceptance of the writ of divorce (get) by her father. The legal bond created by the marriage contracted by her father remains intact even after the death of her husband if he has no offspring. If her spouse dies without offspring and he has brothers through his father, the girl becomes a yevamah, who is subject to levirate marriage (yibbum) to her brother-in-law or release from the obligation through halizah. Her consent is not considered necessary for her marriage or yibbum if her father arranged the marriage. Although Rav (third century C.E.) (or R. Elazar according to another tradition) said the father should not marry off his daughter until she says, “I want that man” (BT Kiddushin 41a), this statement had no legal effect and marriage arrangements were generally made for economic or social benefits.
If the father has married off his daughter while she was a minor and she was then either widowed or divorced, the father loses his right to contract another marriage on her behalf. At marriage, she left his legal domain, reshut, transferred to her husband’s legal domain and cannot return to her father’s legal dominion although she may return to his household. She is considered an orphan in her father’s lifetime (JT Yevamot 1:2, 2d). It is possible that this condition was initiated in order to prevent unscrupulous fathers from repeatedly contracting marriage followed by divorce. If the father died, no legal guardian, including the girl’s mother or brothers, could contract a biblically binding marriage for her. They could, however, contract a rabbinically binding marriage while the girl was a minor which would also subject her to the laws of yibbum.
The father’s right to contract marriage on behalf of his minor daughter has one other limitation: if the mode of acquisition in marriage is by sexual intercourse, she must be at least three years and a day old before her intercourse is considered legal. The reason given is that prior to the age of three years and a day her hymen (betulim) would return (BT Niddah 45a). She may be biblically acquired prior to this age by money or document. This is not to say that she would be forbidden to her legal husband if she were acquired by money or by document before that age, only that she cannot be acquired legally by intercourse prior to the age of three years and a day. The fact that the text (BT Niddah 45a) deals with the status of her blood before and after she reaches the age of three years and a day, whether it is virginal or menstrual blood, and that chapter 10 of Mishnah Niddah and BT Niddah deal with marriage prior to menarche, indicates that sexual relations were the expectation. This contradicts the assumption that the father acts with his daughter’s welfare in mind when contracting such marriages while she is a minor if we include her physical and psychological welfare. The minor boy is legally incapable of acquiring a woman for marriage. At the age of nine years and one day, his intercourse has a certain legal status but does not constitute complete biblical acquisition of a woman. He can partially acquire his childless deceased brother’s widow (yevamah) through this intercourse, but if another paternal brother of legal age also has intercourse with her, the latter's is considered completely legally binding. From that age he may also make a claim on the yevamah through a ma’amar, an oral declaration that he acquires her. An older brother’s intercourse or ma’amar sets his aside.
In chapter 4 of Sefer ha-Bagrut R. Samuel ben Hophni enumerates ten situations for which an examination for the existence of two pubic hairs is required. All of these are accompanied by an additional examination to see that the child understands the issues involved and has control over his/her property (Niddah 5:5). These include the giving of a get by a boy who had sexual intercourse from the age of nine years and a day with his yevamah. That is sufficient for him to acquire her but he may not release her by divorce until his majority. Kiddushin by the boy and independent kiddushin by the girl are valid only when they have reached their respective ages of majority (thirteen years and a day for boys and twelve years and a day for girls) and have brought forth two pubic hairs. Halizah requires both age of majority and two pubic hairs for both the boy and the girl. The girl may no longer repudiate her marriage by me’un if she has reached the age of majority and has brought forth two pubic hairs. Even if the marriage has been consummated, the girl who performs me’un is not considered a divorcée. Some of the poskim limit me’un to eleven years and a day if she has two pubic hairs (Amram ben Sheshna Otzar Ha-Geonim Yevamot, 223:558), while others (Isaac b. Jacob ha-Kohen Alfasi [Rif] Yevamot ch. 3) allow her to perform me’un even after the age of twelve years and a day if she has not had intercourse after the appearance of two pubic hairs. In order for the court to recognize me’un she must undergo a physical examination of her pubic area by the male judges and a court document is written to attest to her status. According to Sefer ha-Bagrut (Chapter 4), if a child has reached the age of majority, sprouted two pubic hairs, understands market prices and is competent in his/her affairs, the child is released from guardianship. If there are no pubic hairs, the guardianship remains in place until the age of twenty.
In the absence of pubic hair development, legal majority is not attained at the normal age of legal majority. For some, this may be a physiological condition where no secondary sexual characteristics develop. If at the proven age of twenty years, one has not sprouted two pubic hairs and has various other signs which indicate an abnormality (for females this includes painful intercourse, lack of breast development and female form, deeper than normal voice and for males this includes lack of body and facial hair, lack of body heat, no arc at urination and a somewhat feminine voice—BT Yevamot 80b), the female is declared to be an ailonit and the male is declared a saris. Both at that point are legal adults. If they are underweight, they must be given extra food and if they are overweight they must diet until they have attained normal weight and are examined again. The ailonit is exempt from both levirate marriage and released from it (halizah) (Mishnah Niddah 5:9; Sefer ha-Bagrut 3: lines 75–80).
If, however, no signs of a saris or an ailonit develop, they remain in an uncertain legal state and cannot be considered full legal adults until the age of thirty-five. Sale of real estate inherited from one’s father is possible when a child has reached the age of majority, sprouted two pubic hairs, understands market prices and is competent in his/her affairs. If the pubic hairs have not sprouted at the age of majority, the right to sell real estate inherited from one’s father is delayed until the age of twenty. According to Rambam (Mekhira 29:12–13), however, sale of real estate and slaves by an orphan is prohibited even after the age of majority unless it can be demonstrated that the orphan understands the value of property (BT Baba Batra 155b–156a). In the case of real estate inherited from one’s father, the sale is not valid until the seller reaches the age of twenty. The same distinctions between Sefer ha-Bagrut and Rambam hold for the freeing of slaves inherited from one’s father. Testimony concerning the sale of real estate requires age of majority, the presence of two pubic hairs at that age, knowledge of market values and legal competency. Testimony concerning the sale of movables is more lenient but does require the status of majority. If the child has reached the age of majority, brought forth two pubic hairs, and knows market values, s/he can make a gift even of real estate and such a person’s claims and admissions are legally valid.
The claim that all women have hymeneal blood is not accurate physiologically, but the sages were convinced of its existence (Mishnah Niddah 9:11). They also connected an abundance of menstrual blood to fertility. Absence of menstrual blood created a legal category called dor katei, which was considered a generation cut off (dor katua) because it indicated infertility.
Minors are not considered capable of taking upon themselves oaths and vows. A year before the age of majority (which is twelve years and a day for girls, thirteen years and a day for boys), a period of education concerning oaths and vows takes effect. During this time children are tested concerning their knowledge of the repercussions of their oaths. If during this period they understand the significance of their words and to whom they made their vows, the vows may stand (Niddah 5:6; Sefer ha-Bagrut Ch. 4). After the age of majority, even if they claim not to understand the significance of their words or to whom the vows were made, the vows stand unless they are legally incompetent due to mental illness, insanity, etc. The biblical distinction in Numbers 30 between males and females prevailed in the rabbinic period. Fathers and husbands may annul the oaths and vows of minor daughters and spouses but not those of sons who have reached the age of majority. It is likely that this distinction was established as a mode of control in order to prevent daughters and wives from taking oaths and vows against their fathers’ or husbands’ desire. This was particularly significant because fathers had exclusive choice of husbands for their daughters. One way in which a girl could object to her father’s choice would be to take a vow prohibiting benefit from the designated husband-to-be, which would make marriage impossible. The father could cancel that vow and similar vows after marriage could be canceled by the husband, keeping the males in control. Only a woman who was totally independent by virtue of attaining single adult status (usually a widow or divorcée) was actually bound by her vows and oaths, since only a sage was able to cancel them if they met the criteria for cancellation (e.g. made in error). The fact that the rabbinic sages interpreted similar limitations on the vow of the nazirite when no such limitations were placed biblically (Numbers 6), indicates that they desired to impose male control on this aspect of spiritual expression (Chana Safrai, Mishnah Nazir 11:9).
Minors are generally not subject to punishment by rabbinic law although they may have been subject to punishment by biblical law (e.g. the rebellious son, ben sorer u-moreh, Deuteronomy 21:18–21, Mishnah Sanhedrin 8:1–5). If a minor girl is married off by her father, she is subject to all of the laws of adultery but is exempt from punishment because as a minor she is not considered capable of legal consent. If a man other than her husband has sexual relations with her, it is considered adultery and the man is liable to capital punishment. The same exemption from punishment holds for a minor boy and a married adult woman who has sexual relations with him but she as the adult is, of course, culpable and subject to capital punishment (Mishnah Niddah 5:4–5).
Legal majority in Jewish law was achieved relatively early in comparison to contemporary standards. It reflected the standards and generally shorter lifespan of antiquity. There was great concern for virginity. By declaring adulthood at a stage before puberty and strong sexual desire (the appearance of two pubic hairs is generally six months to two years prior to menarche or the ability to ejaculate), the sages attempted to control sexuality and regulate lifestyle through the framework of religious obligation. The choice of pubic hair as a sign created the need for close examination of the pubic area in the situations mentioned above. The conflict between modesty and women’s legal status is embodied in the discussion of who examined the girls for the existence of pubic hairs. By creating alternate “upper signs” for breast development, some of the need to examine the girl’s pubic area was eliminated. The rabbinic ages, however, did not relinquish all control in the matter, allowing women to examine girls only before or after the critical time, but if during the critical time only in order to disqualify the girl’s legal position. If the examination was for the sake of me’un, women’s testimony was accepted only to disqualify her by claiming she had two pubic hairs. If the examination was for halizah, only their claim that she did not have pubic hair was accepted, which disqualified her from halizah (BT Niddah 48b). The sages appeared to have been less worried about women’s modesty than about retaining their own legal control. Women, however, were allowed to examine girls for signs of virginity, which was a much more intimate examination (Tosefta Niddah 5:4).
Throughout childhood children were educated. Like a boy, a girl was instructed concerning prohibitions and both underwent a period of training for the fast on Yom Kippur (BT Yoma 82a). The expectations for a girl were considerably lower in terms of formal education as she was exempted from positive time-bound mitzvot which is the area in which the greatest effort was expended, particularly in learning Torah. She was trained in women’s work and women’s mitzvot, but cultural expectations, supported by the legal system, were intended to keep women segregated and often within the home.